New Jersey Public Safety Employee Lawyer & Attorney : Arpaia & Crivelli Law Firm : Police, Firefighters, Workers Compensation, Discipline Representation : New Jersey

On October 30, 2008, The Press of Atlantic City reported that new Ocean City, New Jersey Police Officers will make approximately $5,000 less under the contract that was recently approved by the PBA and city council. The contract with the Policemen's Benevolent Association Local 61 also reflected a move to the state health-insurance system from the city’s own health system. The city has cited double digit increases in premium costs as the reason for moving from its own plan to the State Health Benefits Program. The city further stated that it plans to move all municipal employees to the state benefits program as soon as practicable. 

The contract also reflected a 3.5 percent increase in salary for 2008, a 3.85 percent increase in salary for 2009, a 3.9 percent increase in salary for 2010 and a 3.8 percent increase in salary for 2011.

However where the contract strayed from the traditional path was the establishment of a two-tier pay system reflecting a cut in salary for new hires from $42,200 to $37,500. The contract also changed a longevity payment from a range of 0 to 12 percent to a flat dollar bonus based on years of service.

Presently contract negotiations with the city fire union have reached an impasse and are in binding interest arbitration.

We should take a few teaching points away from the settlement of this particular contract. 

• First, I believe we will see a greater trend developing where municipalities will continue to move away from their own health plan system and opt into the State Health Benefit Program as a cost saving measure. 

• Second, in today’s economy and with the poor self inflicted financial condition of the state of New Jersey, municipal aide is being cut which means less money for pay raises and benefits. The days of seeing 4% increases will be harder to come by in the immediate future. Furthermore, raises for 2008 will probably be less than the years that follow. 

• Finally, it is interesting that the PBA agreed to lower the starting salary of new officers. While there may be a multitude of economic reasons for this decision, we should not speculate why this concession was made without understanding the dynamics of the department’s man power, Table of Organization, and the benefits conferred upon the members for making the concession.

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Currently, many labor organizations representing public employees are negotiating collective bargaining agreements with the State of New Jersey. One of the most significant issues surrounding these negotiations involves the healthcare/benefit program provided by the State of New Jersey to its employees. Specifically, the State’s proposal regarding the dollar amount of employee contributions to the healthcare plan provided by the State, also known as premium sharing, has become vigorously contested by many labor organizations. As such, the State Health Benefits Program has again risen to the forefront of labor law consciousness.

The operation of the State Health Benefits Program (hereinafter referred to as “the Program”) is governed by the New Jersey State Health Benefits Program Act (hereinafter referred to as “the Act”), N.J.S.A. 52:14-17.25 to -17.45. The goal of the Act is to provide comprehensive health benefits for eligible public employees and their families at “tolerable” cost. In essence, it establishes a plan for state funding and private administration of a health benefits program which will protect public employees from catastrophic health expenses. In addition, it encourages public employees to rely on the Program instead of seeking protection in the commercial insurance market. Heaton v. State Health Benefits Commission, 264 N.J. Super. 141, 151 (App. Div. 1993).   

The Act also spawned the State Health Benefits Commission (hereinafter referred to as “SHBC”). The SHBC is entrusted to establish the Program by negotiating and purchasing medical, surgical, hospital, and major medical benefits for participating public employees and their families, “in the best interests of the State and its employees” as well as retaining exclusive jurisdiction to determine disputed matters under the plan. N.J.S.A. 52:14-17.27 to -17.28. The SHBC is entitled to establish rules and regulations as deemed reasonable and necessary for the administration of the Act. See N.J.A.C. 17:9-1.1 to -7.4. The Act also states that the SHBC may set forth limitations and exclusions in coverage as it finds necessary to administer the SHBP.

In undertaking a very consequential role in the financial security of public employees and their families, the State has the duty and responsibility to bargain fairly with them. Hidden or unfair reservations in insurance policies are ignored because they do not reflect the reasonable expectations of the parties. Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 175 (1992); Sparks v. St. Paul Ins. Co., 100 N.J. 325, 336 (1985). Because of the significance of health insurance to public employees and their families, and the Legislature’s undertaking to furnish insurance and determine its scope, one of the goals of the Legislature must have been to assure the fair and even-handed application of the Program provisions. Inevitably, the issue of premium sharing and its potential ramifications will certainly be followed by many public employees and labor organizations throughout the negotiation process to determine whether it is violative of the Program’s policies. 

Presently the state has proposed that all state civilian employees and law enforcement personnel contribute 1.5% of their salary towards health insurance. Certain state public employee labor unions and law enforcement labor unions have agreed to premium share at the 1.5% rate. However certain attorneys practicing labor law believe that there are constitutional issues with percentage premium sharing. We will follow this issue as it winds its way through interest arbitration and possibly the courts of New Jersey.  

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On September 11, 2008, the New Jersey Law Enforcement Supervisors Association (“NJLESA”) and New Jersey Law Enforcement Commanding Officers Association (“NJLECOA”), jointly filed a lawsuit in the Superior Court of New Jersey, Law Division, Mercer County against the State of New Jersey challenging the viability of N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13, the provisions of New Jersey law providing convention leave for State employees.

It is alleged that on or around July 15, 2008, NJLESA, the exclusive representative of those employees in the primary level supervisory law enforcement unit, and NJLECOA, the exclusive representative of superior officers and other command law enforcement personnel holding the rank of Captain or its equivalency in classified career service, requested a leave of absence with pay for certain union officials and duly authorized delegates within their organizations to attend a state convention jointly hosted by NJLESA and NJLECOA. In response, the New Jersey State Office of Employee Relations denied the request and took the position that it was not permitted to grant plaintiffs’ request because neither NJLESA nor NJLECOA were affiliated with any of the organizations delineated in N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 which are entitled to convention leave.

The complaint asserts N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 are arbitrarily exclusive in conferring the benefit of convention leave on certain fraternal organizations while excluding others, thereby violating certain provisions of the United States and New Jersey Constitutions. Consequently, NJLESA and NJLECOA seek a declaration that N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 are unconstitutional or, alternatively, for an order directing the State of New Jersey to award convention leave to members of their organization. It will be interesting to see how this suit develops and how the state of New Jersey reacts to preserving this piece of legislation.

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In the world of Public Employee Discipline as it pertains to New Jersey municipal police officers, we often turn to N.J.S.A. 40A:14-147, or more commonly referred to as the “45 day rule", in ensuring that municipalities act within a reasonable time frame in bringing disciplinary charges against public safety officers. The New Jersey Attorney General’s Guidelines provide that pursuant to N.J.S.A. 40A:14-147, disciplinary charges alleging a violation of the agency’s rules and regulations must be filed within 45 days of the date the person filing the charge obtained sufficient information to file the charge. Specifically, N.J.S.A. 40A:14-147 states that, a “Complaint charging a violation of the internal rules and regulations… shall be filed no later than the 45^th day after the date on which person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.”

Many municipalities, police departments, and collective bargaining units have interpreted N.J.S.A. 40A:14-147 as being applicable to all disciplinary charges and alleged misconduct whether the same violated internal rules, regulations, or procedures or in the alternative fell under misconduct as defined under Title 4A of the New Jersey Administrative Code, or 2C criminal misconduct. However, the world of police discipline as we used to understanding it no longer exists. The Appellate division has clarified N.J.S.A. 40A:14-147.

In the case of McElwee v. Borough of Fieldsboro, A-1230-06T3, the New Jersey Superior Court, Appellate Division opined that N.J.S.A. 40A:14-147’s time limit for bringing disciplinary charges against an employee does not apply when the charges are based on misconduct grounded in title 4A of the New Jersey Administrative Code, nor 2C of the New Jersey Criminal Code. Thus, municipalities may take their time in charging alleged misconduct and do not have to adhere to the “45 day” rule so long as the alleged misconduct is grounded in title 4A of the New Jersey Administrative Code or 2C of the New Jersey Criminal Code.

It appears that the only way collective bargaining units can now broaden the scope of N.J.S.A. 40A:14-147 is to include a contractual clause in collective bargaining agreements that places time restraints on “all disciplinary charges”. The bottom line is that the protection New Jersey municipal police officers once enjoyed under N.J.S.A. 40A:14-147 is not as broadly defined as it used to be. 

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In a non-published opinion, the Appellate Division for the Superior Court of New Jersey ruled that the Public Employment Relations Commission’s (PERC) decision to restrain binding arbitration of a grievance filed by PBA Local 105 for the payment of compensatory time off for work performed by essential employees during the 2006 governmental shutdown was lawful. In 2006, under a declaration of emergency, Governor Jon Corzine shut down the operation of the State of New Jersey due to the government’s failure to agree upon an operating budget. In the case of State of New Jersey Department of Corrections v. PBA Local 105, 32-2-0507, a ruling from PERC upholding a Scope of Negotiations petition filed by the State of New Jersey concerning the union’s inability to grieve essential employee compensation under N.J.A.C. 4A:6-2.5(d) was reviewed. Under New Jersey labor law, employees may only grieve alleged negotiated contractual violations that have not been previously legislated by the State of New Jersey. 

In this instance, the Appellate Court found that under N.J.A.C. 4A:6-2.5(d), the New Jersey Department of Personnel left no doubt that any compensation originating from a declaration of emergency is determined by statute under subsection 4A of the New Jersey Administrative Code. Therefore the payment of compensatory time off during a state of emergency was preempted from negotiations and not grievable. The bottom line is if you are deemed an essential employee and you are called in to work during an emergency while all non-essential personnel are home enjoying the day off, you will get compensated at your regular rate of pay, and no more.

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